Marriage is a Fundamental Right

Most people would not debate that statement. And the Supreme Court has previously recognized that basic principle. Some, however, believe that their definition of marriage is the only definition of marriage that has ever been recognized in this country. Today, in a 5-4 decision by Justice Kennedy, the majority of the Supreme Court thoroughly set forth the historical facts showing that the definition of marriage and what it means to be married has been ever-changing throughout history. In light of the ever-changing nature of marriage, laws banning gays and lesbians from marrying their preferred partners simply represented discrimination against gays and lesbians, violating the equal protection clause.

There are some disappointments in today’s decision. First, the majority declined to clearly state the standard of review that they are applying. That means that some laws discriminating against the LGBT community may stay on the books while lower courts continue to figure out just what states need to prove to justify those laws. (Although, in most cases, the answer will be that they can’t be justified).

Second, each of the four Justices in the minority felt the need to write separately. In many passages, these dissents are somewhat churlish, attacking the majority as not merely reaching the wrong conclusion but boldly claiming that the majority opinion simply ignores the law and is a threat to American Democracy. (Of course, their support for unlimited campaign spending and rejection of voting rights laws are not a threat to American Democracy.) While this type of rhetoric is sometimes seen from some of the dissenting justices, it is disappointing to see it spread to all four of the dissenters.

Third, in his dissent, Justice Scalia shows a very narrow view of original intent (what would the framing generation have said if you posed a legal question to them cold). While the other dissenting opinions also pose a narrow view of the due process clause, one has to ask what would they say when the law coming before the court was one that they found distasteful.

Four, finally, the very narrow majority means that this issue is not quite over. Certain groups (which tend to comprise the base of the Republican Party) will seek ways to resist today’s decision. While that might be good for Democrats in national elections and in certain swing districts, it will tend to make life difficult for those same-sex couples seeking to exercise their rights and conscientious public officials who seek to comply with the law in the face of threats to their jobs from politicians who care more about winning election in conservative areas than in what is right.

There are still three more decisions to come this term, including the last political process case of the term involving the use of redistricting commissions. More likely than not, all three will come out on Monday.